Ed O'Bannon's lawsuit against NCAA could have landmark implications

Ed O'Bannon played for the UCLA team that won the 1995 national title.Associated Press

The materials from the NCAA begin arriving in the mail not long after the acceptance letter, including rule books, health questionnaires and a miscellany of guidelines promising a smooth entry for every student-athlete.

Perhaps the most critical document in the pile — form 08-03a, and in particular, page 4, part IV — authorizes the NCAA to use names and pictures to promote its sports.

Don’t sign, and you can’t play.

Yesterday, at a courtroom hearing in Oakland, Calif., a federal judge listened to arguments in a case that may have landmark implications for the legality of the clause and whether the billions of dollars reaped by college sports programs should be shared with young athletes.

A number of former collegiate athletes, led by the onetime UCLA star Ed O’Bannon, have sued the NCAA, claiming the organization improperly profited from their images and likenesses in lucrative deals with video game companies and others, in violation of antitrust laws.

In grander terms, the case could upset the balance in a long-standing argument that college athletes be paid the same as professionals, and change the definition of what it means to be an amateur athlete.

Any trial might be years away, but U.S. District Judge Claudia Wilken is faced more immediately with a crucial decision over whether to allow the athletes to combine their claims into a class-action lawsuit. If that happens, it could draw in hundreds if not thousands of additional plaintiffs to join the suit. The judge is not expected to issue a ruling on the class-action aspect for at least several weeks.

Her ruling, legal experts agreed yesterday, would not affect the merits of the case one way or another. But, they said, it could threaten the finances of college sports programs throughout the country, and they drew parallels to the ongoing class-action suit brought against the NFL over the dangers of concussions posed by football.

"A class certification would be a scary prospect for the NCAA," said Marc Edelman, a sports business attorney and an incoming assistant law professor at the Zicklin School of Business at Baruch College in New York. "It would allow all the players to unite, and the damages in the aggregate would likely be greater."

Edelman said the waiver players signed before taking the field or diving into the pool or lacing on their track shoes is not itself problematic. But, he said, issues arise when the clause exists virtually throughout the NCAA, limiting the ability for athletes to make "free market choices."

Matthew Mitten, director of the National Sports Law Institute at Marquette University, said the NCAA could face foreboding consequences should the case be turned into a class-action lawsuit. But the NCAA, he said, could take solace in prior rulings that have given the organization wide powers to make rulings to preserve the amateur status of players.

"I’m not one who believes this case is a potential earthquake," Mitten said. "Student athletes are already compensated with scholarships that have the economic value of four or five years of college."

Mitten also said that repercussions for the NCAA depend on whether the judge allows current students to be a part of a class-action suit.

"If we go down that path — what’s to stop athletes from taking money from third parties, from sports agents getting involved," he said. "It would change the nature of college sports."

O’Bannon finds himself at the forefront of what seems to be a growing movement. He was once a power forward at UCLA, and had a bit role in two seasons with the Nets and Dallas Mavericks from 1995-97. He is now a 40-year-old car salesman in Henderson, Nev., who was compelled to sue after seeing himself depicted as an avatar on a video game created by EA Sports.

The video company is also named in the suit brought by O’Bannon in 2009, and in another brought by Sam Keller, a quarterback from 2003-05 for Arizona State University. O’Bannon and Keller have since joined their cases as one.

As if the case was not complicated enough, Mitten of Marquette said it pits the athletes’ rights to protect their image against the right of the video company to protect their freedom of creative expression.